October 1st was the official start of the 2012-13 Supreme Court term. While there are not many employment law cases on the docket, there is one case, Vance v. Ball State University, that we are watching closely. This Supreme Court case will impact other harassment cases.

In Vance v. Ball State University, the Supreme Court will take up the issue of who exactly qualifies as a supervisor in employment cases. While some of you reading this may be wondering how that is even a question, trust us it is, and it has caused a Circuit Court split. This has resulted in the Supreme Court being charged with the task of answering this question.

The Circuit Court Divide

The 2nd, 4th, and 9th Circuits hold that a supervisor is an individual whom an employer has given the power to direct and oversee an employee’s day-to-day work performance, i.e., anyone that supervises employees.

In the 2nd, 4th, and 9th Circuits, the individual who oversees, checks, monitors, critiques, etc., you in your position at work (i.e., supervises you), qualifies as a “supervisor” under the law.

The 1st, 8th, and our Circuit, the 7th, hold that an individual only qualifies as a supervisor if an employer has given that person the power to hire, fire, demote, promote, transfer, or discipline an employee.

In the 1st, 8th, and 7th Circuits, the individual who oversees/supervises you is not a “supervisor” under the law if that person cannot take employment actions against you, such as discipline, fire, demote, or promote you. So, although the person supervises you at work, that person is not technically a “supervisor” under the law.

Why Does Definition of a Supervisor in Employment Cases Matter?

Employers are automatically liable for harassment engaged in by supervisors. Therefore, in a harassment case,

If the alleged harasser is a supervisor, then the employee only has to prove that harassment occurred for the employer to be liable. That’s it.

If the alleged harasser is not a supervisor or other member of management, in order for the employer to be liable the employee has to prove:

The harassment occurred

The employer knew about it

The employer failed to fix it (i.e., that the employer was negligent)

Vance v. Ball State University

In the Vance case, the petitioner, Maetta Vance, alleged she was subjected to a racially hostile work environment by Saundra Davis, who assigned work to Vance. Vance sued Ball State University alleging that it was liable for Davis’ racial harassment because Davis was her supervisor.

The district court granted summary judgment in favor of Ball State, and the 7th Circuit agreed. The basis for the courts’ decisions in favor of Ball State was their finding that Davis did not qualify as a “supervisor” under the law because she could not take employment actions against Vance. Because Davis was not a supervisor and because Vance could not prove Ball State was negligent, the courts dismissed Vance’s case. Vance appealed and here we are.

How Walcheske & Luzi, LLC sees it: Supervisors under the law should be supervisors as we understand it. While this will create more potential opportunities for vicarious liability for employers, the standard itself will not be changing. Supervisors act on behalf of an employer, so if a supervisor engages in harassment, the employer is liable for it. The only difference would be in the technical legal definition of who qualifies as a supervisor in employment cases. In everyday usage, we understand our supervisors to be the individuals who supervise us at work, regardless of whether they can take employment actions against us. Aligning the legal definition of supervisor with our everyday understanding of the term is just plain logical and eliminates needless haggling over whether an individual legally qualifies as a supervisor.

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